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3 Legal Issues that Arise with ART

Assisted Reproductive Technology (ART) is a medical technology that makes it possible for individuals and couples to fulfill their dream of becoming parents. Conception (usually with physician assistance) is achieved using gametes (eggs and sperm) either from a donor or from the intended parent(s). The three most common forms of ART are:

  • In vitro fertilization: the extraction of sperm and ova from a man and a woman and combining them in the laboratory to create a pre-embryo, which is then implanted in a woman’s uterus.

  • Assisted insemination: the transfer of sperm to the woman’s cervix or uterus

  • Gestational carriers or surrogates: women who agree to carry the baby and relinquish him or her to the new parents after birth. With surrogates (also known as traditional gestational carriers), the woman is also the biological mother of the child.

Although ART has been greeted as a modern miracle that has enabled many happy families to grow, it is also surrounded by complicated and even personal legal questions. Four of them are explained below.

  1. Establishing Legal Parentage

State laws vary, but a woman who gives birth is typically presumed to be the child’s biological mother. If she is married, her husband is usually listed as the father on the birth certificate. With ART, the woman who gives birth is not always the mother nor is her husband always the father.

Intended parents must obtain a pre-birth order, which is a court order directing the hospital to place their names on the child’s birth certificate instead of the name of a gestational carrier and her husband. Otherwise, they may have to go through the process of legally adopting the child.

  1. Use of Gestational Carriers

There are two types of gestational carriers:

  • Gestational surrogates who carry an embryo created from the sperm and egg of the intended parents, donors, or one of each.
  • Traditional surrogates, who carry their own eggs, which have been fertilized with an intended parent’s sperm or that of a donor.

Many physicians will not assist with a traditional surrogacy because of the legal and psychological risks involved. They will also not transfer embryos into the uterus of a gestational carrier without a contract that has been signed by the intended parents, the gestational carrier, and her husband if she is married. These agreements specify each party’s rights and responsibilities during the pregnancy and after the child’s birth.

  1. Compensation for carriers and donors

Some states limit the ability of a surrogate to be compensated for her services. She and the intended parent(s) should retain attorneys familiar with the laws applying to ART and draw up a contract that addresses:

  • Compensation
  • Financial support for pregnancy-related and medical costs
  • Health insurance
  • Any problems that could arise during the pregnancy

Once it becomes part of the legal surrogacy contract, the compensation agreement will be enforceable.

With sperm and egg donors, those who provide their biological material anonymously to a bank or other facility surrender all legal rights to any children created. When the donor is known to the parent(s), an agreement should be drawn up addressing each party’s rights and responsibilities and whether any compensation will be paid.

Contact Us

At the Law Offices of Regina M. Taylor., we counsel and represent individuals and couples of all backgrounds who wish to become parents, including through the use of Assisted Reproductive Technology. With the help of our team, you can rest assured that your rights are clear and your interests will be protected. For more information or to begin the legal process of parenthood through ART, give us a call at (704) 861-0700.

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